The urgent need to extend the transition period

This is the ninth and final instalment in this series by Roger Liddle. For the previous pieces in this series, please click here.

The Covid-19 crisis is proving so disruptive that the UK Government’s stated determination to have completed and ratified negotiations on Britain’s future relationship with the EU by 11pm on December 31^st, 2020 appears quite unrealistic and probably unattainable. Some form of postponement is inevitable:

• The Johnson government’s objective of reaching “broad agreement” with the EU on our post Brexit relationship by end of June this year is now in the realms of fantasy.
• The complex processes of ratification of a trade deal by the existing December 31^stdeadline require a final agreement by the negotiating parties in the early autumn.
• While technical negotiations may limp on, civil service resources have been switched in both London and Brussels to the handling of the COVID-19 crisis.
• Ministers and heads of government have no political space in the present Covid crisis to devote to resolving the outstanding clashes of position between the EU and UK.
• The present timetable envisages that a new regime of border controls at the Channel ports (and across the Irish Sea, in consequence of the new Northern Ireland Protocol which was the key to unlocking Boris Johnson’s Withdrawal Agreement) will be in place on January 1^st, 2021. Business has been given no indication of the precise nature of these new controls, because national authorities do not know at present what form these will take.
• Even if business had been told what would be required of them next January, because of COVID19, business will have no time to prepare for their implementation. The pandemic is proving especially challenging for the crucial logistics sector.

In the light of these facts, the British government must abandon its objective that ‘broad agreement’ on the essentials of the deal must be reached by June. It must agree an extended timetable. The simplest way to achieve this is under the terms of Article 132 of the Withdrawal Treaty, an international treaty ratified by Parliament in January this year. The Joint Committee (that is of the UK and EU established by the Treaty to oversee its application) “may, before July 1, 2020, adopt a single decision extending the transition period for up to 1 or 2 years”.

The maximum extension of the transition period should now be sought for up to two years to the end of December 2022.

To achieve this necessary extension of the transition period will however require an amendment to be made to the current domestic legislation that currently stipulates that no extension to the transition period should be sought. To change this deadline is a matter for the UK alone, not the EU – and it’s quite simple to achieve. The 2020 Withdrawal Act contains an exceptional ‘Henry the Eighth’ power for the government to change the terms of the Act by statutory instrument under the negative resolution procedure.

This will be a painful decision for the most committed Brexiteers. The politics of the Conservative party suggest that the UK would only agree to the shortest possible postponement, if any at all. However, polling suggests a majority of the public, including over 40% of Leavers, accept the logic of extending the transition period in these deeply uncertain times [1].

The arguments for extending the transition go far beyond the simple reality that the negotiators on both sides cannot properly negotiate because of illness, travel restrictions, and the need for social distancing. The issues at stake are much more fundamental than unavoidable short-term disruption. Rather a two-year postponement is needed to consider the economic and geo-political consequences of Covid-19. These consequences are not yet fully clear, but there can be little doubt they will be monumental.

An extended Brexit transition will allow time, though not much, for a proper assessment of what the national interest now requires should take place. In the light of this mid-COVID19 assessment, the government’s negotiating strategy should be adjusted to secure the best possible Brexit deal.

[1] Polling report, Sunday Times, April 19^th, 2020.